‘Just war’ to Article 2(4)

We will look at the historical limitations and the so- called ‘just war’ theory which is the philosophical foundation of the UN Charter’s limitations on the use of force We will also look at Article 2(4) of the UN Charter Background reading: Shaw, M International Law 6 th ed, pp OVERVIEW

The theory or doctrine of the ‘just war’ is common to many different religions including Hinduism and Christianity India: the ancient Mahabarata (circa 5 th -2 nd century BC) discussed when it is ‘just’ or right to wage war The Mahabarata is an ancient Sanskrit text, part of Hindu religion In it, there is a discussion between 2 brothers on when it is just to wage war Many ideas were discussed which we recognise today, eg. proportionality (chariots cannot attack cavalry, only other chariots, no attacking people in distress), just means (no poisoned or barbed arrows), just cause (no attacking out of rage), and fair treatment of captives and the wounded Just war theory came to be part of Western international law via the Christianisation of the Roman Empire ‘JUST WAR’

Christian scholars such as Augustine of Hippo and Thomas Aquinas thought and wrote about when it is just (right) to wage war Christians had to justify war in the face of the Bible’s apparent prohibition of war (ie “turn the other cheek” in Matthew 5:39) Augustine ( AD) was able to do that Thomas Aquinas ( AD) developed the idea further ‘JUST WAR’ CONTINUED…

Lived in Annaba, Algeria Used the phrase ‘just war’ in his book The City of God He said peacefulness in the face of a grave wrong that could only be stopped by violence would be a sin. Defense of one's self or others could be a necessity, especially when authorized by a legitimate authority The pursuit of peace must include the option of fighting to preserve it in the long-term. Such a war could not be preemptive, but defensive, to restore peace Lived in Annaba, Algeria Used the phrase ‘just war’ in his book The City of God He said peacefulness in the face of a grave wrong that could only be stopped by violence would be a sin. Defense of one's self or others could be a necessity, especially when authorized by a legitimate authority The pursuit of peace must include the option of fighting to preserve it in the long-term. Such a war could not be preemptive, but defensive, to restore peace AUGUSTINE OF HIPPO

Thomas Aquinas was from Aquino, Italy He used Augustine’s arguments, but developed them into 3 conditions for a ‘just war’” 1.War must occur for a good and just cause/purpose (rather than for self-gain or as an exercise of power). 2.Just war must be waged by a properly instituted authority such as the state. 3.Peace must be a central motive even in the midst of violence Thomas Aquinas was from Aquino, Italy He used Augustine’s arguments, but developed them into 3 conditions for a ‘just war’” 1.War must occur for a good and just cause/purpose (rather than for self-gain or as an exercise of power). 2.Just war must be waged by a properly instituted authority such as the state. 3.Peace must be a central motive even in the midst of violence THOMAS AQUINAS He also said that just war was supposed to punish “wrong- doers”

A problem arose when Europe organised into states States would be fighting each other, but both states would be Christian, both claiming to be waging a ‘just war’ in the name of God The theory had to change: obviously it wasn’t enough to fighting in the name of God for a good cause A new requirement emerged: serious efforts to achieve peace were necessary before turning to force JUST WAR AND THE EUROPEAN NATION-STATES

Salamanca is in Spain Several Spanish scholars developed the ‘just war’ theory in the th centuries Vitoria, Suarez were among them They said: not every wrong can justify a war Examples of a ‘just war’ included: In self-defense, as long as there is a reasonable possibility of success. Preventive war against a tyrant who is about to attack. War to punish a guilty enemy. Even if war was ‘just’, there were limits such as protection of innocents and proportionate use of force THE SALAMANCA SCHOOL

Grotius ( ) was a Dutch scholar The so-called “founder of international law” Wrote a famous book, De jure belli ac pacis, on the laws of war and peace On just war he said it only exists: 1.In self-defence 2.For the protection of property 3.For the punishment of wrongs suffered by the citizens of a state HUGO GROTIUS

What was ‘the Peace of Westphalia’? A series of peace treaties, signed in 1648, that ended many of the religious wars in Europe including The Thirty Years War It recognised that all states are sovereign and equal After the Peace of Westphalia, ‘just war’ theory went out of fashion: no state could say whether another state had a ‘just’ cause for going to war Each state had to respect the principle that they were all sovereign and equal Differences would have to be resolved peacefully (or at least try) Whether the cause of war was just or not became irrelevant THE PEACE OF WESTPHALIA

‘Just war’ theory became popular with the rise of Christianity Then it declined with the inter-Christian religious wars (when Christian states in Europe were all fighting against each other) The rise of nation-states and the doctrine of sovereignty meant it became irrelevant In later years, it came back into fashion again ‘JUST WAR’ SUMMED UP

The League of Nations was set up after World War I ( ) What was it? The first permanent international organisation whose goal was to maintain world peace The League was an attempt by world powers to stop another terrible conflict, like WWI It’s charter (founding document) was called The Covenant of the League of Nations Mainly drafted by US President Woodrow Wilson (came from his Fourteen Points, introduced at the Paris Peace Conference) It came into effect on 10 January 1920 Click here to read The Covenant: The Covenant said that members should submit disputes to arbitration (Article 12) Member states couldn’t resort to war until 3 months after the arbitration decision This was supposed to be a ‘cooling-off’ period for states, to reduce the chance of going to war THE LEAGUE OF NATIONS

It failed to prevent major conflict In the 1930s, many major powers withdrew (Germany, Italy, Spain, Japan) The US never joined the League of Nations (even though President Woodrow Wilson was behind the drafting of the Covenant) The USSR was expelled in 1939 The League didn’t actually prohibit the use of force: it just tried to limit its use The League ultimately failed: World War II began in 1939, bringing the League to an end WHAT BECAME OF THE LEAGUE OF NATIONS?

Remember, the League didn’t prohibit the use of force Another treaty went further & condemned the resort to the use of force: the Kellogg-Briand Pact 1928 (a.k.a The General Treaty for the Renunciation of War) Kellogg-Brand Pact came into force on 24 July 1929 The Kellogg-Briand Pact (which is still technically in force today) stated that war can no longer be used as in instrument of foreign policy This is now a valid principle of international law Named after the authors (US Sec of State Kellogg, French Foreign Minister Briand) Many states made a reservation to the treaty, reserving the right to use force in self-defence THE KELLOGG-BRIAND PACT 1928